MANU/DE/1164/2011

Equivalent Citation: 178(2011)DLT671, II(2011)DMC 98, 2011(123)DRJ554, 2011(2)HLR41, (2011)ILR 6Delhi216, 2011(5)RC R(C ivil)742

IN THE HIGH COURT OF DELHI

MAT APP 13/2009
Decided On: 08.04.2011
Appellants: Faheem Ahmed
Vs.
Respondent: Maviya
Hon'ble Judges/Coram:
Kailash Gambhir, J.
Counsels:
For Appellant/Petitioner/Plaintiff: S.C. Sagar, Adv.
For Respondents/Defendant: Dharmendra Kumar Vashishta, Adv.
JUDGMENT
Kailash Gambhir, J.
1. By this appeal filed under Section 39 of the Special Marriage Act, 1954, the Appellant
seeks to challenge the judgment and decree dated 18.11.2008 passed by the learned
trial court, whereby the petition filed by the Respondent under Section 24(2) of the
Special Marriage Act was allowed.
2 . Brief facts of the case as set out in the petition relevant for deciding the present
appeal are that the parties were friends since college days and were also subsequently
classmates, pursuing a course together at the Gems Craft Jewellery Institute, Lajpat
Nagar, New Delhi. As per the case of the Respondent, she wanted to get the
membership of the library in Jama Masjid and on the assurance of the Appellant in
helping her get the same, he persuaded her to convert to Islam for this purpose. That
for this purpose, the Respondent signed and executed certain documents which the
Appellant claimed to be the registration of marriage and conversion certificate and that
by virtue of those the Respondent became his wife. The Respondent hence preferred a
petition under Section 24(2) of the Special Marriage Act, 1954 for having the
registration of the marriage declared to be of no effect which vide judgment and decree
dated 18.11.08 was decreed in favour of the Respondent. Feeling aggrieved with the
same, the Appellant has preferred the present appeal.
3 . Assailing the impugned judgment and decree, Mr. S.C. Sagar, learned Counsel
appearing for the Appellant submitted that the learned trial court committed a
jurisdictional error in entertaining the suit of the Respondent under Section 24(2) of the
Special Marriage Act. The contention of counsel for the Appellant was that the said suit
at best could have been treated by the learned trial court under Section 25(iii)(a & b) of
the Special Marriage Act, for which the prescribed period of limitation is one year from
the date of the alleged discovery of fraud by the Respondent and reckoning the said
period of one year from the date of the registration of the marriage i.e. 28.11.2005, the
said suit filed by the Respondent on 08.05.2007 was clearly barred by time. Counsel for
the Appellant further submitted that the learned trial court ignored the documentary

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evidence which was proved on record by the Appellant to prove the conversion of the
Respondent from Hindu religion to Muslim religion and also solemnization of the
marriage between the parties according to Muslim religion. The contention of counsel
for the Appellant was that the conversion affidavit dated 22.11.2005 was duly proved on
record by the Appellant vide Ex.PW-1/R-9, Nikahnama as Ex.PW-1/R-11 and public
notice about the change of name of the Respondent from Luxmi to Maviya vide Ex.PW-
1/R-21. Counsel for the Appellant further submitted that even a complaint in writing
dated 09.02.2007 Ex.PW-1/R-12 was addressed by the Respondent to the SHO, P.S.
Gandhi Nagar wherein she had disclosed the fact of her marriage with the Appellant and
sought her safety from her parents. Counsel thus contended that these vital documents
could not have been ignored by the learned trial court which clearly establishes the
factum of conversion as well as the marriage between the parties. Counsel for the
Appellant further argued that the Respondent is a well-educated lady and she fell in love
with the Appellant and voluntarily came forward to agree for the conversion as well as
for the said marriage according to Muslim customs. Counsel further submitted that all
the said facts were well within the knowledge of the parents of the Respondent and the
same were duly established during the cross-examination of the witnesses produced by
the Respondent. Counsel for the Appellant further submitted that no suggestion was
given by the Respondent in the cross-examination of the Appellant who examined
himself as RW-1 to suggest that he forced the Respondent for the said conversion from
Hindu to Muslim religion or even any fraud was played by him upon the Respondent to
seek registration of the marriage. Counsel for the Appellant also submitted that the said
marriage was duly proved on record by the Appellant through the evidence of RW-2 Mr.
Sadakat Ali, who witnessed the said marriage between the parties. Counsel also
submitted that the registration of the marriage was also proved by the Respondent
herself through the evidence of PW-4 Ajit Kumar, Steno, Additional District Magistrate
Office, Saket. Counsel for the Appellant further submitted that no evidence was adduced
by the Respondent to prove the alleged fraud on the part of the Appellant or on the part
of the staff of the Registrar of Marriages which could establish any kind of fraud being
played by them upon the Respondent. Counsel also submitted that the suit filed by the
Respondent was not maintainable on account of non-impleadment of the Registrar of
Marriages as a party. Counsel also submitted that the Respondent did not file any
objection under Section 8 read with Section 16 of the Special Marriage Act and in the
absence of the same, the registration of the marriage could not have been challenged by
the Respondent.
4 . Based on the above submissions, counsel for the Appellant submitted that the
Appellant successfully proved on record the conversion of the Respondent from Hindu
religion to Muslim religion and also the registration of the marriage in accordance with
Section 15 of the Special Marriage Act and in the face of the documentary and oral
evidence led by the parties there was no room for the learned trial court to have
disbelieved the defence of the Appellant and thus there is a clear illegality and
perversity in the findings given by the learned trial court and hence the impugned
judgment deserves to be set aside.
5. Counsel for the Respondent, on the other hand, supported the findings of the learned
trial court but, however, took an exception to the finding arrived at by the learned trial
court holding that the Respondent wanted to convert her religion from Hinduism to
Islam. The contention of counsel for the Respondent was that the learned trial court
inadvertently overlooked the facts proved on record by the Respondent to establish the
fact that as to how the Appellant had taken undue advantage of his proximity with a
gullible girl from whom the Appellant got signed various papers. Counsel for the
Respondent further submitted that the Respondent-Petitioner had correctly filed the

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petition under Section 24(2) of the Special Marriage Act and not under Section 25(iii)
(b) of the Act, as the case set up by the Respondent was that she had never married the
Respondent and the marriage registration certificate was obtained by the Appellant in
violation of the conditions specified in Section 15(a) of the Special Marriage Act.
Counsel for the Respondent also submitted that since the Respondent had filed the
petition under Section 24(2) of the Special Marriage Act, therefore, the bar of limitation
of one year would not arise in the present case. Counsel for the Respondent further
submitted that there was no legal requirement to implead the Registrar of Marriages as
a party to the suit under the High Court Rules and, therefore, the objection raised by the
Appellant in this regard is not tenable.
6 . On merits, counsel for the Respondent re-asserted that the Respondent had never
changed her religion from Hinduism to Islam as she neither had any faith in Islam nor
had she given her free consent to undergo the said change of religion. Counsel thus
submitted that once the Respondent had not changed her religion, therefore, there is no
marriage which can be said to have taken place between the Appellant and the
Respondent under the Special Marriage Act.
7 . I have heard the learned Counsel for the parties at considerable length and gone
through the records.
8 . Based on the pleadings of the parties, the learned trial court framed the following
issues:
(1) Whether there was no valid conversion of the Petitioner from Hinduism to
Islam? OPP
(2) Whether there was no proper solemnization of marriage between the
parties? OPP
(3) Whether the parties after the alleged marriage and before its registration
did not live together as husband and wife? OPP
(4) Whether the registration of the marriage of the parties was in contravention
of the condition specified in Section 15(a) of the Special Marriage Act, 1954. If
so its effect? OPP
(5) Whether the registration of the marriage has been obtained by fraud? OPP
(6) Relief.
9. In support of her case, the Respondent-Petitioner examined herself as PW-1 and she
had also examined PW-2 Mr. R.K. Singh, Nodal Officer, Bharti Airtel Ltd., who proved
on record the call records of the mobile phone of the Respondent as Ex.PW-2/1 and of
the Appellant as Ex.PW-2/2. PW-2 also proved on record the Site ID chart (Tower
location) of the Appellant's mobile phone as Ex.PW-2/3. The Respondent also examined
her father Mr. Pitamber Dutt Bhadri as PW-3, Mr. Ajit Kumar, Stenographer from the
Office of the Additional District Magistrate Office, Saket, New Delhi as PW-4. The
Respondent also examined her brother Mr. Binod Bhadri as PW-5 and her friend Ms. Arti
Mishra as PW-6. The Appellant on the other hand examined himself as RW-1 and his
friend Mr. Sadakat Ali as RW-2.
1 0 . On issue No. 1, the learned trial court did not believe the story set up by the
Respondent that to get the membership of the library in Jama Masjid, she had agreed to

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convert herself to Islam. The learned trial court in para-25 of the impugned judgment
has observed that it is too incredible to believe that a city bred and educated girl of 21
years would fall for the alleged bait of a library membership to convert her religion. The
learned Counsel for the Respondent raised a dispute about the said finding of the
learned trial court on the ground that the learned trial court totally failed to appreciate
the evidence produced by the Respondent to prove the fact that she was entrapped by
the Appellant to sign and execute some documents without coming to know about the
sinister plans of the Appellant.
11. Without going into some of the discrepancies pointed out by the learned Counsel
for the Respondent in the findings of the learned trial court on issue No. 1, I do not find
any perversity in the reasoning given by the learned trial court to disbelieve the story
put forth by the Respondent that for taking some membership in a library in Jama
Masjid she agreed to convert herself from Hinduism to Islam. The learned trial court
rightly observed that the claim of the Respondent to convert herself to Islam just for the
sake of a library membership has to be tested in the light of the background, education
and also the relationship which she shared with the Appellant. The Respondent had also
not disclosed the name of the library in Jama Masjid where she wanted to seek the
membership. She also admitted the fact that she had neither seen that library nor she
had signed the library membership form to seek membership for that library. The court
also found that even post conversion, no attempt was made by the Respondent to seek
membership of any such library. The conversion from one religion to another has to be
very well thought and serious decision in one's life and it is hard to believe that one
would change her religion just for the sake of seeking a library membership. The said
version of the Respondent also gets demolished from the admitted fact that there was a
serious love affair between the Respondent and the Appellant and it appears that the
Respondent with a view to find an escape route, not only from the said relationship but
also from her immature decision to get herself converted from Hinduism to Islam,
devised the said theory of seeking membership in some library of Jama Masjid. I,
therefore, do not find any infirmity in the said finding of the learned trial court holding
that the claim of the Respondent that she was fraudulently made to undergo conversion
ceremony for the sake of library membership cannot be believed.
12. So far the question of conversion of the Respondent from Hinduism to Islam is
concerned, the learned trial court has returned a finding against the Appellant. As per
the defence raised by the Appellant before the learned trial court, the Respondent
converted herself to Islam by executing an affidavit dated 22nd November, 2005 which
was duly attested by the SDM and the Notary. The Appellant has further taken a stand
that after the said attestation, the Respondent had appeared before the Qazi for the
issuance of the conversion certificate and on the conversion certificate, the Respondent
herself in her own handwriting stated the fact that she had converted her religion by her
own sweet will and without any sort of pressure upon her in signing the same. For
better appreciation of the controversy, the said declaration made by the Respondent on
the conversion certificate Ex.PW-1/R-10 dated 28.11.05 is reproduced as under:
I Luxmi D/o Mr. Pitamber Dutt r/o GB-51 Pul Pehladpur New Delhi-44 am giving
my statement on oath that I am a major and my date of birth is 01.01.1984. I
can understand what is good and bad for me. The law and society allows me to
adopt any religion of my choice. I have seen a lot of goodness and qualities in
Islam and being impressed with the same with the help of Allah and of my own
will without any force or coercion or greed have become a Muslim and I have
kept my islami name Maviya. In future I should be called by the said name. I
have written these words so that the same may be remembered and used at the

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 time of need, so also because my MAT.APP.13/2009 Page 13 of 39 mother,
father and relatives do not initiate any legal proceedings against me
13. In the affidavit which was proved on record as Ex.PW1/R9, the Respondent has
deposed that as she was impressed with Islam religion, she had adopted the same of
her own sweet will, consent and without any pressure and also changed her name from
Luxmi to Maviya. The relevant para 3 of the said affidavit is also reproduced as under:
3. That I have embarrassed in Islam and I have adopted Islamic religion with
my own sweet, will, consent and without any pressure, threat or coercion from
any corner and also changed my name from Laxmi to MAVIYA, henceforth I
shall be known as Maviya in future in all respects.
A bare perusal of the aforesaid declaration given by the Respondent on the conversion
certificate and on the affidavit filed by her before the Qazi, manifestly shows that the
Respondent never had the true, honest and genuine intention of converting herself from
Hinduism to Islam religion. Nowhere the Respondent has stated that she was converting
herself from Hinduism to Islam religion because she professed faith in Islam religion or
she had started following the tenets of Islam religion in her day-to-day life. She has
also nowhere stated that she took a conscious and well-thought out decision to
renounce Hindu religion. It also cannot be lost sight of the fact that the Appellant failed
to produce the Qazi who could have been the best witness to prove the fact of
conversion undergone by the Respondent and withholding of such a material witness by
the Appellant further strengthens the case of the Respondent that such a conversion was
a mere farce. In the background of the aforesaid facts, this Court does not find any
infirmity in the finding of the learned trial court taking a view that the Respondent
converted herself to Islam religion just with a view to get married to the Appellant, the
marriage which was not acceptable to the family of the Respondent.
14. India is a secular country and under Article 25 of the Constitution of India, right
has been given to every citizen to profess, practice or propagate any religion. The
cherished ideal of secularism which is the hallmark of our Constitution has been
expressly recognized under the said Article 25 of the Constitution of India. The
Constitution does not put any kind of embargo on the right of any person to freely
choose any religion he or she so likes or the religion which one is to adopt and practice
in his or her life. It is well-settled that freedom of conscience and right to profess a
religion implies freedom to change his or her religion as well. The Constitution of India
does not define the word 'religion' and rightly so, as the framers of the Constitution
could not have perceived to give any exhaustive definition of "religion". The meaning of
word "religion", however, has been discussed in number of judgments of the Supreme
Court and it would be appropriate to refer the judgment of the Constitution Bench in the
case of S.P. Mittal v. Union of India AIR 1983 SC 1 where the Apex Court had an
occasion to discuss the concept of religion at great length. The relevant paras of the
same are reproduced as under:
In order to appreciate the contentions of the parties, it is necessary to know the
implication of the words "religion" and "religious denomination". The word
"religion" has not been defined in the Constitution and indeed it is a term which
is hardly susceptible of any rigid definition.
77. The expression "Religion" has, however, been sought to be defined in the
Words and Phrases, Permanent Edn., 36-A, p. 461 onwards, as given below:
Religion is morality, with a sanction drawn from a future state of rewards and

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 punishments.
The term "religion" and "religious" in ordinary usage are not rigid concepts.
'Religion' has reference to one's views of his relations to his Creator and to the
obligations they impose of reverence for his being and character, and of
obedience to his will.
The word "religion" in its primary sense (from "religare", to rebind, bind back),
imports, as applied to moral questions, only a recognition of a conscious duty
to obey restraining principles of conduct. In such sense we suppose there is no
one who will admit that he is without religion.
'Religion' is bond uniting man to God, and virtue whose purpose is to render
God worship due him as source of all being and principle of all government of
things.
'Religion' has reference to man's relation to divinity; to the moral obligation of
reverence and worship, obedience, and submission. It is the recognition of God
as an object of worship, love and obedience; right feeling toward God, as
highly apprehended.
'Religion' means the service and adoration of God or a God as expressed in
forms of worship; an apprehension, awareness, or conviction of the existence
of a Supreme Being; any system of faith, doctrine and worship, as the Christian
religion, the religions of the Orient; a particular system of faith or worship.
The term "religion" as used in tax exemption law, simply includes: (1) a belief,
not necessarily referring to supernatural powers; (2) a cult, involving a
gregarious association openly expressing the belief; (3) a system of moral
practice directly resulting from an adherence to the belief; and (4) an
organization within the cult designed to observe the tenets or belief, the
content of such belief being of no moment.
While "religion" in its broadest sense includes all forms of belief in the
existence of superior beings capable of exercising power over the human race,
as commonly accepted it means the formal recognition of God, as members of
societies and associations, and the term, "a MAT.APP.13/2009 Page 17 of 39
religious purpose", as used in the constitutional provision exempting from
taxation property used for religious purposes, means the use of property by a
religious society or body of persons as a place for public worship.
Religion" is squaring human life with superhuman life. Belief in a superhuman
power and such an adjustment of human activities to the requirements of that
power as may enable the individual believer to exist more happily is common to
all "religions". The term "religion" has reference to one's views on his relations
to his Creator, and to the obligations they impose of reverence for His being
and character and obedience to his will.
The term "religion" has reference to one's views of his relations to his Creator,
and to the obligations they impose of reverence for his being and character,
and of obedience to his will. With man's relations to his Maker and the
obligations he may think they impose, and the manner in which an expression
shall be made by him of his belief on those subjects, no interference can be

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 permitted, provided always the laws of society, designed to secure its peace
and prosperity, and the morals of its people, are not interfered with."
78. These terms have also been judicially considered in Commissioner, Hindu
Religious Endowments, Madras v. Lakshmindra Thirtha Swamiar of Sri Shirur
Mutt1 where in the following proposition of law have been laid down:
(1) Religion means "a system of beliefs or doctrines which are regarded by
those who profess that religion as conducive to their spiritual well-being
(2) A religion is not merely an opinion, doctrine or belief. It has its outward
expression in acts as well.
(3) Religion need not be theistic.
....
Hence, the word 'religion' used in Articles 25 and 26 of the Constitution of India must
be construed in its strict and etymological sense. It is a matter of personal faith and
belief of personal relations of an individual with what he regards as his Maker, Creator
or Cosmos and which he believes, regulates the existence of insentient beings and the
forces of the Universe.
15. The issue of religious conversion has come before the Apex Court and various High
Courts time and again and the courts have tried to evolve judicial principles for
discerning the genuine conversions from the feigned ones. It would be useful to refer to
some of the landmark decisions in this regard here, one of the earliest being the
judgment of the Bombay High Court in Dr. Abdur Rahim Undre v. Smt. Padma Abdur
Rahim Undre AIR 1982 Bombay 341, which was also referred to by the learned trial
court wherein it was held that:
27. It is a well known principle of civil law that a person born into or following
one religion continues to belong to such religion subject to conversion to
another religion. Conversion to another religion basically requires change of
faith. To say the least it is a matter of conviction. According to Mulla's Principle
of Mohammedan Law any person who professes Mohammedan religion that is,
he acknowledges that there is but one God and that Mohammad is his prophet
is a Mohammedan. Such a person may be a Mohammedan by birth or he may
be a Mohammedan by conversion. It is not necessary that he should observe
any particular rites or ceremony to be an orthodox believer in the religion, no
Court can test or gauge sincerity of religious belief. It is sufficient if he
professes Mohammedan religion in the sense that he accepts prophetic grant of
Mohammedan (section 19, Chapter 2, page 19 of Mulla's Principles of
Mohammedan Law). Thus the real test is of professing Mohammedan religion.
As to when is the true import of the term profess fell for consideration of the
Supreme Court in Punjab Rao V. D. P. Meshram MANU/SC/0050/1964 : (1965)1
SCR 849 of the said decision the Supreme Court has observed as under:
1 3 . What Clause (3) of the Constitution (Scheduled Castes) Order,
1950 contemplates is that for a person to be treated as one belonging
to a Scheduled Caste within the meaning of that Order he must be one
who professes either Hindu or Sikh religion. The High Court, following
its earlier decision in Narayan Waktu v. Punjabrao,:
MANU/MH/0086/1958 : AIR1958Bom296 has said that the meaning of

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 the phrase "professes a religion" in the aforementioned provision is "to
enter publicly in to a religious state" and that for this purpose a mere
declaration by a person that he has ceased to belong to a particular
religion and embraced another religion would not be sufficient. The
meanings of the word "profess" have been given thus in Webster's New
World Dictionary: " to avow publicly, to make an open declaration
of...to declare one's belief in: as to profess Christ. To accept into a
religious order" The meanings given in the Shorter Oxford Dictionary
are more or less the same. It seems to us that the meaning 'to declare
one's belief in: as to profess Christ' is one which we have to bear in
mind while construing the aforesaid order because it is this which bears
upon religious belief and consequently also upon a change in religious
belief. It would thus follow that a declaration of one's belief must
necessarily mean a declaration in such a way that it would be known to
those whom it may interest. Therefore if a public declaration is made
by a person that he has ceased to belong to his old religion and has
accepted another religion he will be taken as professing the other
religion. In the face of such an open declaration it would be idle to
enquire further as to whether the conversion to another religion was
efficacious. The word 'profess' in the Presidential Order appears to have
been used in the sense an open declaration or practice by a person of
the Hindu for the Sikh religion. Where, therefore, a person says, on the
contrary that he has ceased to be Hindu he cannot derive any benefit
from the order.
Thus it appears that for a conversion there should be a declaration of one's
belief and the said declaration should be in such a way that is should be known
to those whom it may interest. If a public declaration is made by a person that
he has ceased to belong to one religion and is accepting another religion, he
will be taken as professing the other religion.
The learned trial court also relied on the judgment of the
Supreme Court in Lily Thomas v. Union of India MANU/SC/0327/2000 : (2000) 6 SCC
224 wherein while dealing with the issue of feigned conversion by a Hindu to Islam
religion, the court observed that:
39. Religion is a matter of faith stemming from the depth of the heart and
mind. Religion is a belief which binds the spiritual nature of man to a super-
natural being; it is an object of conscientious devotion, faith and pietism.
Devotion in its fullest sense is a consecration and denotes an act of worship.
Faith in the strict sense constitutes firm reliance on the truth of religious
doctrines in every system of religion. Religion, faith or devotion are not easily
interchangeable. If the person feigns to have adopted another religion just for
some worldly gain or benefit, it would be religious bigotry. Looked at from this
angle, a person who mockingly adopts another religion where plurality of
marriage is permitted so as to renounce the previous marriage and desert the
wife, he cannot be permitted to take advantage of his exploitation as religion is
not a commodity to be exploited. The institution of marriage under every
personal law is a sacred institution. Under Hindu Law, Marriage is a sacrament.
Both have to be preserved.
In Perumal Nadar (dead) by Legal Representative v. Ponnuswami Nadar (minor)

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MANU/SC/0361/1970 : AIR 1971 SC 2352 it was by the Apex Court as under:
A person may be a Hindu by birth or by conversion. A mere theoretical
allegiance to the Hindu faith by a person born in another faith does not convert
him into a Hindu, nor is a bare declaration that he is a Hindu sufficient to
convert him to Hinduism. But a bona fide intention to be converted to the Hindu
faith, accompanied by conduct unequivocally expressing that intention may be
sufficient evidence of conversion. No formal ceremony of purification or
expiation is necessary to effectuate conversion.
In Kailash Sonkar v. Smt. Maya Devi MANU/SC/0061/1983 : AIR 1984 SC 600
reiterating the same approach even for re-conversion, the Apex Court observed that:
In our opinion, the main test should be a genuine intention of the reconvert to
abjure his new religion and completely dissociate himself from it. We must
hasten to add here that this does not mean that the reconversion should be only
a ruse or a pretext or a cover to gain mundane worldly benefits so that the
reconversion becomes merely a show for achieving a particular purpose
whereas the real intention may be shrouded in mystery. The reconvert must
exhibit a clear and genuine intention to go back to his old fold and adopt the
customs and practices of the said fold without any protest from members of his
erstwhile caste. In order to judge this factor, it is not necessary that there
should be a direct or conclusive proof of the expression of the views of the
community of the erstwhile caste and it would be sufficient compliance of this
condition if no exception or protest is lodged by the community members, in
which case the caste would revive on the reconversion of the person to his old
religion.
16. In Rakheya Bibi v. Anil Kumar ILR 1948 Cal 119 the Calcutta High Court held that it
is open for the Court to go into the question whether the conversion was a bonafide one
or a mere pretence. In a recent case of M. Chandra v. M. Thangamuthu and
Anr.MANU/SC/0721/2010 : (2010) 9 SCC 712, the Supreme Court laid down the
following test to prove conversion:
It is a settled principle of law that to prove a conversion from one religion to
another, two elements need to be satisfied. First, there has to be a conversion
and second, acceptance into the community to which the person converted. It is
obvious that the need of a conversion cannot be altogether done away with.
17. Thus the legal position which crystallizes from the above discussion is that it is the
right of every individual to choose or embrace any religion and every person has the
complete liberty to forsake his previous religion and to convert himself to another
religion. There can be various reasons which can prompt a person to change his/her
religion but when one changes his religion, then such a change should come from one's
heart based on his change of faith and his determination to embrace the new religion
with complete faith, belief and consciousness. Conversion from one religion to another
religion in any case is a solemn, pious and noble act with far reaching consequences
and it cannot be seen as an exercise undertaken by someone as a mere pretence to
achieve some limited objective or purpose. Nobody can be seen to change his/ her
religion just to seek a membership of a library. There cannot be any divergence of
opinion that in certain situations one of the parties to the marriage belonging to one
religion can take a decision to embrace the religion of the other party but however such
a conversion should not be undertaken merely to achieve the purpose of marriage, it

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should be done to embrace the new religion with a will and desire to completely follow
the tenets of the new religion while simultaneously forsaking the tenets of the religion
being professed by a person prior thereto.
18. I had also the occasion to deal with a somewhat similar situation as has arisen in
the case at hand , where a Muslim lady married a Hindu based on her conversion from
Muslim religion to Hindu religion and invoked the provisions of the Hindu Marriage Act,
and it was held:
Conversion to another religion basically requires change of faith; it is
essentially a matter of conviction. A mere theoretical allegiance to the Hindu
faith by a person born in another faith does not convert him into a Hindu, nor is
a bare declaration that he is a Hindu sufficient to convert him to Hinduism. The
conversion from one religion to another religion is a very major decision in
one's life and for proving such a conversion, it is incumbent upon the Appellant
to place on record complete facts and documentary material, if any, to satisfy
the court that based on such facts and supporting material, the Appellant had
undergone change of religion. Change of religion cannot be believed merely on
vague oral allegations unsupported by any documentary or uncorroborated oral
evidence.
....
21. India is a melting pot of the religions of the world maintaining a delicate
balance between its myriad religious communities and religious tolerance. By
virtue of Article 25 of the Constitution of India everyone is free to practice one's
own religion making India the most secular country in the world. However, at
this strange point of time, religious conversions have gathered many eyeballs
as it is being increasingly used for anything but the primary reason for
conversion; spiritual advancement. The basic focus to convert from one religion
to another is to seek God from another platform but unfortunately today
proselytization is increasingly done for reaping benefits and in cases like the
present one, an afterthought to maneuver the law. In number of cases the
Supreme Court has held that religion was not merely a matter of faith and
belief, but also included rituals, ceremonies and religious practices according to
the religious tenets of a religion. But apostasy produces far reaching results in
the relations of husband and wife, where it is also a ground for divorce under
the Hindu Marriage Act and raises controversies like the present one demanding
a mechanism in place to stop people from fishing in troubled waters.
19. Now analyzing the facts of the case at hand in the backdrop of the aforesaid legal
position, in my considered view the learned trial court has rightly observed that the
Respondent got prepared her conversion certificate because she wanted to marry the
Appellant and to achieve this purpose, she did feign to have adopted another religion
which was for the only purpose of worldly gain of marriage. It would be appropriate to
reproduce para 35 of the impugned judgment as under:
The Petitioner got herself the conversion certificate because she wanted to
marry the Respondent. In this manner she did feign to have adopted another
religion which was only for the purpose of the worldly gain of a marriage. Her
act had nothing to do with her faith in Islam. This is confirmed by the
Respondent himself in his testimony wherein he has deposed that she converted
by executing an affidavit expressing her intent to convert and the Qazi issuing a

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 conversion certificate after seeking her affidavit expressing her intent to
convert. There is no mention of the Qazi confirming her change in faith or
making her utter the Kalma.
20. The learned trial court further found that in the affidavit filed by the Respondent in
evidence, she testified that she never had professed Islam and was a worshipper of Lord
Shiva and such a deposition of the Respondent remained unrebutted in the absence of
any cross-examination by the Appellant. The learned trial court also found that no
suggestion was given by the Appellant to the Respondent that she practiced Islam or
read the namaz or kept rozas. The learned trial court further found that even the
families of both the parties were not aware of either the said conversion or of the
marriage. The learned trial court also found that even the publication of name Maviya by
the Respondent nowhere proved the fact that she intended to change her religion from
Hinduism to Islam.
2 1 . In view of the above discussion, this Court does not find any infirmity in the
findings of the learned trial court on the Issue No. 1 and it has been rightly held that
there was no conversion of the Respondent from Hinduism to Islam.
22. This now brings me to the finding of the learned trial court on Issue No. 2, which
concerns the question as to whether there was proper solemnization of marriage
between the parties or not. The Appellant has claimed marriage with the Respondent
firstly under the Muslim Law before the Qazi and secondly under Section 15 of the
Special Marriage Act. With the findings of the learned trial court on Issue No. 1 having
gone against the Appellant, however, still the learned trial court examined the question
as to whether proper marriage according to Muslim customs took place or not, even
assuming the fact that there was a valid conversion of the Respondent from Hindu to
Muslim religion.
23. Referring to the essentials of a Muslim marriage, the learned trial court pointed out
that the Appellant being a Sunni what was required was that there should be a proposal
of marriage made by or on behalf of one of the parties to the marriage and an
acceptance of the proposal by or on behalf of the other in the presence and hearing of
two males or one male and two female witnesses, who must be sane and adult Muslims.
It would be appropriate to again reproduce paras 41,43,44 and 45 of the impugned
judgment as under:
4 1 . A Muslim marriage is a civil contract the object of which is firstly
legalization of sexual intercourse and secondly procreation of children.
Although solemnized with recitation of verses from the Koran it is not a
sacrament but purely a civil contract. Also no ceremonies or rituals are essential
for the solemnization of a Muslim marriage. The essentials of a Muslim
marriage are that there should be a proposal made by or on behalf of one of the
parties to the marriage and an acceptance of the proposal by or on behalf of the
other in the presence and hearing of two males or one male and two female
witnesses, who must be sane and adult Muslim. While in a Sunni marriage the
absence of witnesses makes the marriage irregular and not void, in a Shia
marriage the witnesses are not necessary. The proposal and acceptance must
both be expressed at one meeting.
4 3 . The Respondent is a sunni. There is no mention in the pleadings or
testimony of any of the parties or their witnesses about any proposal of
marriage being made and its acceptance before the Qazi. The Petitioner

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 nowhere admits to the proper sequence of the essentials of a nikah being
followed before the Qazi or the ceremony of nikah per se being performed,
which fact has gone unchallenged as the Respondent had failed to examine the
Qazi who was competent to depose about the sequence of events proving all
necessary ingredients of a valid nikah. The counsel for the Respondent has
placed great reliance upon the nikahnama (Ex. PW1/11) admitted to bearing the
signatures of the Petitioner, to stress that there was proper solemnization of the
marriage. Although the Petitioner admits her signatures and thumb impression
on the nikahnama (Ex PW1/R11), significantly this document is printed in
Arabic, a language which she does not understand. Also the nikahnama which is
a certificate of marriage amount and by itself does not prove the essentials of a
nikah having been performed.
44. The Respondent has examined himself and one of the two witnesses to the
nikah, Mr. Sadaqat Ali (RW-2) who is his friend as his witnesses. The
Respondent in his examination-in-chief has testified that on 28.11.2005 both
parties gave the Qazi their affidavits expressing their intent to marry in addition
the Petitioner gave her affidavit expressing her intent to convert. The marriage
of the parties was solemnized in Jama Masjid and thereafter the Qazi issued the
conversion and marriage certificate. There is no mention in his pleadings or
evidence about the essential ceremonies of the nikah being performed.
45. Mr. Sadaqat Ali (RW-2) when questioned about what transpired on the said
day before the Qazi only testifies to the effect that "the Kazi enquired
something from the Petitioner and the Respondent and thereafter took my
signatures on the nikahnama and one register". Neither the Respondent nor his
witness (RW-2) have testified to the proposal for marriage being made by the
Respondent or on his behalf and the acceptance of the same by or on behalf of
the Petitioner in the presence and hearing of two males or one male and two
female witnesses. This vague statement of the witness about what transpired
itself casts doubt on the solemnization being proper.
It would be thus clear from above that neither the Appellant nor his friend Mr. Sadakat
Ali (RW-2) could prove on record that essential ceremonies of the nikah were performed
between the parties.
24. Marriage amongst the Muslims is not a sacrament but purely a civil contract. There
are no rituals or ceremonies which are essential for solemnization of Muslim marriage.
The twin objectives which the Muslim marriage seeks to achieve are; (i) legalization of
sexual intercourse (ii) procreation of children. The essence of Muslim marriage is
mutual consent. The proposal and acceptance need not be in any particular form. The
essentials of marriage under the Mohammedan law as described under Section 252 by
Mulla at page 256, 7th Edition are as under:
252. Essentials of a marriage-It is essential to the validity of a marriage there
should be a proposal made by or on behalf of one of the parties to the
marriage, and an acceptance of the proposal by or on behalf of the other, in the
presence and hearing of two male or one male and two female witnesses, who
must be sane and adult Mohammedans. The proposal and acceptance must both
be expressed at one meeting; a proposal made at one meeting and an
acceptance made at another meeting do not constitute a valid marriage. Neither
writing nor any religious ceremony is essential.

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It would be thus manifest that the first legal essential of a valid Muslim marriage under
the civil contract is a proposal made by or on behalf of the one of the parties to the
marriage and the acceptance of such proposal by or on behalf of the other party. The
other essential requirement is that such a marriage takes place in the presence and
hearing of two males or one female or one male or two female witnesses who not only
should be adults but sane as well.
25. In the present case, although the nikahnama was proved on record as Ex.PW-1/11
but except the said nikahnama nothing was proved on record to establish the fact that
the essential requirement of offer and acceptance was made by the parties in the
presence and hearing of the witnesses. The learned trial court in para 44 (reproduced
above) has clearly observed that there was no mention either in the pleadings or in the
evidence about the essential ceremonies of the nikah being performed between the
parties. The learned trial court has also taken note of the two affidavits filed by the
parties before the Marriage Officer which were executed by them on 9.12.2005 i.e. after
a gap of 10 days from the date of the alleged marriage but the same carried a
declaration that "marriage would be solemnized in a Masjid at Delhi" meaning thereby
that the marriage was yet to be performed between the parties. This Court, therefore,
does not find any infirmity in the finding of the learned trial court on Issue No. 2 as
well.
26. Now the other argument canvassed by the counsel for the Appellant was that the
suit filed by the Respondent under Section 24(2) of the Special Marriage Act was not
maintainable due to a jurisdictional error, as the said suit should have been entertained
by the learned trial court as the one being filed under Section 25(iii)(a)&(b) of the said
Act. As a sequel to this argument, counsel further submitted that had the said suit been
treated under Section 25(iii)(a)&(b) of the Special Marriage Act, then the same would
have been time barred due to non-filing of the same within the prescribed period of one
year from the date of alleged discovery of fraud. Counsel for the Respondent, on the
other hand took a stand that Section 25(iii)(a)&(b) of the Special Marriage Act would be
totally inapplicable, as the case set up by the Respondent in the said petition was that
she in fact was never married to the Appellant and the registration of the marriage was
in clear violation of the conditions specified under Section 15(a) of the Act. The learned
trial court dealt with the said argument of the Appellant under Issue No. 4 and in para
61 of the impugned judgment, it observed that since there was no conversion of the
Respondent from Hinduism to Islam and therefore there could not have been any valid
marriage between the parties. The learned trial court further observed that the Appellant
and the Respondent never lived together as husband and wife after their alleged
marriage and prior to the registration and therefore such a marriage was clearly in
contravention of Section 15(a) of the Special Marriage Act, 1954.
27. Section 24 of the Special Marriage Act, 1954 deals with those marriages which are
null and void while Section 25 deals with voidable marriages and the present petition
was filed by the Respondent under Section 24(2) of the Special Marriage Act not under
Section 25 of the said Act. Under which provision of law the case of the Petitioner
would fall and what relief the Petitioner can claim in the facts of the case is for the
Petitioner to decide and not for the Respondent. In the said suit filed by the Respondent
(Petitioner before the trial court) the allegations raised by the Respondent were that the
conversion of religion gone into by her was not a valid conversion in the eyes of law as
she had no faith in Muslim religion and she had not professed the tenets of Muslim
religion. The Respondent further alleged that the registration of marriage was obtained
in violation of the mandatory conditions required for the purpose of registration as the
parties had never lived together since their marriage. The Respondent also took a stand

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in the said suit that no valid marriage was performed between her and the Appellant. In
the face of these allegations raised by the Respondent, her case was squarely covered
under Section 24(2) of the Special Marriage Act, 1954, whereunder the marriage
solemnized under the Act shall be null and void if it is in violation of any of the
conditions specified in Clauses (a) to (e) of Section 15 of the said Act. The argument
raised by the counsel for the Appellant has thus no force and the same is rejected.
2 8 . The other argument raised by the counsel for the Appellant that the marriage
certificate became a conclusive evidence under Section 13(2) r/w Section 40(c) of the
Act and also r/w Section 4/36 of Indian Evidence Act is also equally devoid of any
merit. The marriage certificate is conclusive evidence so far it proves its issuance by a
proper and competent Marriage Officer after following the due procedure prescribed
under the Act and the Rules framed there under. The said conclusive evidence, however,
cannot come in the way of the parties challenging such a marriage certificate or the
marriage itself.
29. The other argument raised by the counsel for the Appellant that the suit was not
maintainable on account of non-impalement of Registrar of Marriage and non filing of
objection by the Respondent under Section 8 r/w Section 16 of the Special Marriage Act
also lacks force. Section 8 of the Special Marriage Act would be attracted in a case
where objection is made by any of the parties under Section 7 of the said Act
complaining violation of any one or more conditions specified under Section 4 of the
Act. No such case was set up by the Respondent in the said suit. Counsel for the
Appellant has not proved that there was any provision requiring impalement of Registrar
of Marriage in a suit filed under Section 24(2) of the Special Marriage Act.
30. All other contentions raised by the counsel for the Appellant are also devoid of any
merit as this Court does not find any illegality or perversity in the reasoning given by
the learned trial court in accepting the case of the Respondent that she had never
adopted Islam religion and there was no proper solemnization of marriage between the
parties.
31. At omega, it would be befitting to mention that the Hon'ble Division Bench of the
Kerala High Court in the case of Re: Betsy and Sadanandan MANU/KE/1087/2009 :
2009(4) KLT 631 decided on 16th October, 2009, while dealing with a joint application
moved by the parties for dissolution of marriage under Section 13B of the Hindu
Marriage Act, 1955, examined the issue as to how, in the absence of any specific
procedure prescribed under the Hindu law, custom and statute, the Court may hold
whether there has been conversion or re-conversion to Hinduism. The Hon'ble High
Court invited the attention of the Law Commission in order to address the need for
legislation on the issue. This Court also when faced with a similar catch 22 situation in
the case of GA Arife@Arti Sharma (supra) decided on 13.8.2010 seconded the
suggestion of the Kerala High Court that the need for legislative intervention is
imperative to curb the court battles and controversies arising out of the converts
religious status in matrimonial proceedings. The Law Commission of India thus acting
on the suggestion in its 235th Report published in December, 2010 has made the
following recommendations:
Recommendations
1 6 . The Law Commission, therefore, proposes to formulate the following
recommendations:
1. Within a month after the date of conversion, the converted person, if

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 she/he chooses, can send a declaration to the officer in charge of
registration of marriages in the concerned area.
2. The registering official shall exhibit a copy of the declaration on the
Notice Board of the office till the date of confirmation.
3 . The said declaration shall contain the requisite details viz., the
particulars of the convert such as date of birth, permanent address, and
the present place of residence, father's/husband's name, the religion to
which the convert originally belonged and the religion to which he or
she converted, the date and place of conversion and nature of the
process gone through for conversion.
4 . Within 21 days from the date of sending/filing the declaration, the
converted individual can appear before the registering officer, establish
her/his identity and confirm the contents of the declaration.
5 . The Registering officer shall record the factum of declaration and
confirmation in a register maintained for this purpose. If any objections
are notified, he may simply record them i.e., the name and particulars
of objector and the nature of objection.
6 . Certified copies of declaration, confirmation and the extracts from
the register shall be furnished to the party who gave the declaration or
the authorized legal representative, on request.
17. Now, the question arises as to how the above recommendations could be
implemented. It is clarified that in whichever State, there is a law governing
conversion such as Freedom of Religion Act, the above recommendations do not
apply. The question then is whether for implementation of the said
recommendations in other States, the enactment of law by Parliament is
necessary. The Commission is inclined to think that a separate enactment or
amendments to the respective personal laws is not required to give effect to
this simple recommendation having regard to the fact that it does not go
contrary to the existing provisions of law nor does in any way impinge on the
religious freedom or faith of any person. Matters relating to
conversion/reconversion are governed by the personal laws in respect of which
Parliament has power to make laws. The Central Government can exercise its
executive power under Article 73 to issue appropriate instructions to the Union
Territories. Similar communications may be addressed by the Central
Government to the States (where there are no laws governing the conversion)
to give effect to the recommendations set out supra. The Governments
concerned in their turn will have to issue necessary orders to the Registration
officers. That can be done by the Governments of UT and State Governments
administratively.
Hence, as it would be manifest from the above, the Law Commission has recommended
that this issue can be tackled by way of executive instructions. Now the onus is on the
Government to steadfastly act on the same as this is a recurring controversy before the
courts adding to the judicial backlog.
32. In the light of the above discussions, I do not find any merit in the present appeal
and the same is hereby dismissed.

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